People ex rel. Gentry v. Apple

People ex rel. Gentry v Apple (2019 NY Slip Op 06655)

People ex rel. Gentry v Apple

2019 NY Slip Op 06655

Decided on September 19, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 19, 2019

526509

[*1]The People of the State of New York ex rel. Rondue Gentry, Appellant,

v

Craig D. Apple, as Sheriff of Albany County. Respondent.

Calendar Date: August 30, 2019
Before: Garry, P.J., Aarons, Rumsey and Pritzker, JJ.

Rondue Gentry, Attica, appellant pro se.

Daniel C. Lynch, County Attorney, Albany (Michael Goldstein of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered December 8, 2017 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In November 2017, while he was being held in the Albany County jail, petitioner commenced this proceeding pursuant to CPLR article 70 against respondent seeking a writ of habeas corpus directing his release. Supreme Court dismissed the application without a hearing. Petitioner, in turn, filed a pro se notice of appeal. However, in March 2018, while his appeal was still pending, petitioner was transferred to the custody of the Department of Corrections and Community Supervision to serve his seven-year prison sentence upon his conviction of the crime of attempted criminal possession of a weapon in the second degree. Inasmuch as respondent no longer has custody of petitioner, petitioner's appeal is now moot and must be dismissed (see People ex rel. Kearney v Bartlett, 131 AD3d 1313, 1314 [2015]).

Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur.

ORDERED that the appeal is dismissed, without costs.